Index.

Demurrer for non joinder of parties is well taken where it appears that

the court can not determine the controversy without prejudice to the
rights of others, nor by saving their rights. It seems that $ 122 is
the controlling section on demurrer for defect of parties, Wallace

agt. Eaton, 99.
A general allegation in a demurrer to an answer, that the facts therein

do not constitute a defence, is sufficient, Hyde agt. Conrad, 112.
see Answer, 206.

DISCOVERY, an order for discovery may be enforced before issues joined in

the

cause, Miller agt Mather, 160.
An application for discovery or inspection of books, papers, &c., must

Index.

FEES,

EES, what fees a county clerk is entitled to under the Code, as clerk of

the Supreme Court, 11.
Attorneys and counsel fees are not recoverable in summary proceedings

to recover the possession of land, against the adverse party, Patridge

agt. Ford, 21.
Fees of justice must be paid on serving notice of appeal (see Appeal,)

Van Heusen agt. Kirkpatrick, 422.
see Surrogate, Gardner agt. Brown, 351.
It is no ground for a readjustment of costs that the clerk refuses to allow

50 cents for entering judgment. This fee is his and he has a right
to refuse it, Schermerhorn agt. Van Voast, 458.

FOREIGN CORPORATION. see Practice, 96, 183.

ent of pura

GUARDIAN, the facts upon which a plaintiff relies for judgment against in-

fant defendants must be established by legal proof, notwithstanding
the attorney for their guardian may have consented that judgment be
taken on the report of a referee, Litchfield agt. Burwell, 341.

I can
7. Halbrak 1

gaze 2.91
rt of a reten

HUDSON RIVER R. R. COMPANY, their obligation by their charter to

pay laborers, Warner agt. The Hudson River Rail Road Co.,

454,

to appear

IMPERTINENCE IN PLEADING, see Pleading, 53.

PERTIN
facts constituting an equitable defence to a legal demand, will not be

struck out as irrelevant, Burget agt. Bissell, 192.

INJUNCTION, a creditor of insolvent partners may have injunction to pro-
tect partnership property, Dillon agt. Horn,

35.
An application to dissolve an injunction made on the pleadings, the answer

being verified, must be regarded as made on affidavits, and affidavits

may be read in opposition, Schoonmaker agt. Durch Church, 265.
Contra) also see Miliken agt. Cary, 272.
the complaint can not be treated as an affidavit, id.

4. Cryge

Index.

(Florence agt. Bates, 2 Sand. 675, Krom agt. Hogan, 4 How. 225.
Contra, Hartwell agt. Kingsley, 2 Sand, 674, and note.)
the only inquiry now on an application for injunction is whetber the act

complained of will produce injury to the plaintiff, Cure agt. Craw-
ford, 293.
Contra, see Wordsworth agt. Lyon, 463.
A mere refusal to pay a debt, whether debtor be solvent or not, is not

cause for issuing an injunction, Pomeroy agt. Hindmarsh, 437.
nor is it sufficient that defendant threatens to make an assignment for the

benefit of his creditors, id.
suspicion, belief and information are not sufficient, id.
It is not the province of the Supreme Court to interfere by injunction,

where a remedy is given by appeal, Woodworth agt. Lyon, 463.

to authorize an injunction it must appear that plaintiff is entitled to the

final relief demanded according to law, independent of the Code, id.
Cure agt. Crawford, ante 293, disapproved.

INTEREST, to recover annual interest upon the whole principal payable in

installments, words must be used clearly to express that intention,

Bander agt. Bander, 41.
ISSUE, see Pleading.

JUDGMENT, the

decision of a motion on a demurrer as frivolous, is a judg-
inent, King agt. Stafford, 30.
Where judgment is pronounced in open court, holden by eight judges,

without any dissent at the time, neither party can go behind such
public act to show that there was equal division of opinion among the

judges, Mason agt. Jones. 118 Court of Appeals).
It seems that the Court of Appeals can der an affirmance where there

is an equal division of the judges, id.
Where a complaint is on separate and distinct bills, or accounts, and the

answer denies one bill only, and the balance claimed specifically in
the language of the complaint the plaintiff may have judgment for

the accounts not denied by the answer, Tracy agt. Humphrey, 155.
but the answer can not be stricken out on tne ground of falsity where

it is verified, id.
see Appeal, 200, 201.
see Motion to dismiss complaint,
see Confession of judgment, 322, 38!.
A judgment in the hands of an assignee who purchased with notice and

with no new consideration, is liable to be set off against the assignor,
Noxon agt. Gregory, 339.

Index.

JURISDICTION, if motion be made and granted by default in the wrong

county, the order is not void for want of jurisdiction, Blackmar agt. Van Inwager, 367.

JUSTICE OF THE PEACE, a justice of the peace had no power to take

judgment by confession for more than $100, by Code of 1848, Dan

icls agt. Hinkston, 322, see Appeal, 323, 422.

LANDLORD

DLORD AND TENANT, tenants from year to yeur may be removed

by summary proceedings, Prouty agt. Prouty, 81. such a tenant is included in the term “ tenants at will ” in the statutes

of '30 and '49, and may be removed upon one month's notice to quit,

terminating with the year, id. the affidavit should state that tenant þolds over without permission of

his landlord, id. Distinction between sub lease and assignment of the original terra,

Linden agt. Hepburn, 188, see also, Pleading, id. The provision of the Revised Statutes (2 R. S. 516, § 47) is inconsistent

with the Code, and therefore repealed, Cure agt. Crawford, 293. proceedings to remove tenant may be stayed if they would produce in

jury to plaintiff, id.
Contra, Woodworth agt. Lyon, 463.

LIEN OF ATTORNEY, the lien of an attorney for his costs is subordinate

to the equities existing between the parties, Noxon agt. Gregory, 339.

LIMITATION, see Appeal, Bank of Geneva agt. Hotchkiss, 478.

LUNATIC, an action can not be brought against a lunatic, judicially declared

such without application to the court. The old practice should be pursued by petition to the court for relief or application for leave to bring an action, Soverhill agt. Dickson, 109.

MandaMUS,

ANDAMUS, see Appeal, People ex rel. Cahoon agt. Dodge, 47.

MISNOMER, misnomer of the court-called “ General Sessions of the Peace

instead of “ Court of Sessions " as designated by the Code, immaterial, People agt, Hawkins, 1.

Index.

MOTION, costs of—see Notice, 134.

costs of motion in the regular progress of the suit need not be inserted

in the order, but follow of course to the prevailing party, Thomas

agt. Clark, 375.
see Jurisdiction, Blackmar agt. Van Inwager, 367.

m